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Columbia Law School Public Law and Legal Theory Working Paper Series

Abstract

This symposium essay argues that administrative regulation of abortion and reproductive rights deserve closer study. Administrative regulation of abortion is overwhelmingly health regulation; the focus is on abortion as a medical procedure, and the government’s only stated interest is protecting the health of women obtaining abortions. Such regulation is becoming increasingly common, and is worthy of greater attention on that ground alone. But in addition, and of particular relevance to this symposium on reproductive rights and equality, administrative abortion regulation demonstrates the difficulty in successfully challenging abortion restrictions as unconstitutional gender discrimination. Given general medical agreement that early abortions pose minimal health risks, couple with the absence of the unique aspect of abortion—the state’s interest in preserving potential life—measures singly abortion out for burdensome health regulations might be thought particularly vulnerable to a gender equal protection challenge. Paradoxically, however, emphasizing these measures’ health focus serves to immunize them against constitutional challenge, because it makes these measures appear as a species of ordinary regulation and triggers deference to government’s broad power to regulate in the name of health and to administrative expertise. Yet at the same time, the perception of abortion health measures as ordinary regulation opens up the possibility of challenging these measures in more straightforward administrative law terms.